Guest Post from Michael Blasie on Plain Language Waivers
Which Contract is Better?
By Michael A. Blasie
- Waiver Language
- The Introduction
The waiver begins “We bet you’ve never seen a waiver and disclaimer like ours” and has an image of the word “legalese” circled in red.
- Kind of Hazards
In a few paragraphs comprised of short, plain, humorously-worded sentences, the waiver explains how natural and human-made, known and unknown hazards can injure racers.
First, it describes a category of natural tripping hazards: “The trail has plenty of rocks, roots, stumps and other tripping hazards.” Then it describes a category of human-made tripping hazards: “A faster runner might, therefore, knock you to the side, causing you to slam headfirst into a tree or be impaled on a jagged root.”
It warns of general health hazards caused by nature, “like poison ivy, ticks, bugs, wasps and other woodsy things you find in the great outdoors.” When pointing out how weather can affect racers, the waiver notes “[w]ind and rain may create mud holes, fell trees and limbs and create hazards that race officials don’t even know about. Even if we detect a hazard, don’t expect us to warn you. You’re on your own.”
via Wikimedia Commons
Almost in a chuckling tone, the waiver warns about directions: “Vandals may swipe trail markings. You could veer off course and run straight into a horse’s ass for all we know. . . . race officials may deliberately create extra hazards. Just for fun. (Don’t worry, this gets better.)”
When discussing the importance of hydration and nutrition, it warns “[t]here are only three water stops, so it’s important to carry a water bottle and any food that you want. If you get dehydrated, it could be months before we find your pile of vulture-picked bones. (Ever had so much fun reading a disclaimer?)”
Last, it points out road crossing dangers: “There are some road crossings. They might have police coverage. Or they might not.”
- Release Language
via Wikimedia Commons
Then comes the release language: “But even though you might get hurt or lost, you’re agreeing to all this crap because you want to run this race.”
To describe who the racer is releasing, the waiver states: “You are therefore releasing and discharging all race officials, volunteers, sponsors, municipalities, and school districts, as well as releasing the rocks, roots, bugs, tree limbs, and other stuff, dead or alive, gnarly or not, that might poke an eye out or otherwise hurt you. Because you know that trail running is a high-risk activity.” In case the bottom line was unclear, the waiver states “[i]n other words, you won’t sue any of the people or groups responsible for this race if you get hurt or suffer illness (such as COVID).”
- Known and Unknown Risks
“We’re almost done. This is the important part. This trail has known knowns; there are things we know that we know. There are also known unknowns; that is to say, we know there are some things we do not know. But there are also unknown unknowns – there are things we do not know that we do not know. You are accepting all these risks; known and unknown.”
- Concluding Swipe at Typical Waiver Language
“And you are agreeing to all of this even though it’s written in plain English instead of stupid legalese.”
- Is This Waiver Better?
By the way, you might like to know a plaintiffs’ personal injury lawyer created the race. The fact that a lawyer who likely has extensive experience attacking waivers would choose to use one with very different language likely untested in court piqued my interest.
The waiver’s language is unique. It certainly looks nothing like the kind of language usually found in waivers for high-risk activities. Indeed, it openly mocks typical waiver language, while also invoking humor and using plain language. All that makes it different. But different is not necessarily better.
Is this waiver better than the traditionally worded waiver? I am less interested in the answer and more interested in the process of getting to an answer because I am not convinced lawyers or scholars have a way of evaluating contract language.
Of course, most would say the waiver must be enforceable. Ok, so it has to have all the requirements for contract formation and nothing that would render it unenforceable. But that is a fairly low bar, and many differently-worded waivers would meet this threshold.
And you would want the waiver to contain the right substance. This analysis prompts an interesting question: does this waiver offer more, less, or the same substance as a traditionally worded waiver? For the moment, let’s assume both options are coextensive.
Next, you would probably say it should be enforceable the way the client wants it to be. In other words, we want to be able to predict a court will interpret language to our client’s advantage. Fair enough, but without case law interpreting the language, it seems hard for a lawyer to claim one set of language is more predictable of how a court would rule than another.
Here is where deciding between the two gets murky. I do not think there is widespread agreement on what else a lawyer or a client would consider when evaluating a contract. Here are other potential considerations:
- Should the waiver be understandable to the participant?
- Should the waiver be understandable to race administrators?
- Should the waiver’s writing style be consistent with or supportive of the company’s brand?
- Should the waiver decrease the chance a racer will be harmed, which in turn decreases the chance of a lawsuit?
- Should the waiver decrease the chance an injured racer would sue (even if you believe you would win at trial)?
What else would you consider?
- Conclusion
A contract may serve a client in ways beyond being enforceable in court the way the client intended. Looking at unconventionally-worded contracts like this one may provide some insights as to what additional purposes contractual language might serve.